Take Me Out to the Courthouse, Revisited

As a fan of our national pastime, I was interested to see a news story recently about a Philadelphia Phillies fan who was, frankly (*rimshot*), beaned in the eye by the Philly Phanatic, the team’s mascot, operating that bane of ballpark safety, the hotdog cannon.  The processed-meat-injury threat posed by these weapons of meat destruction cannot be underestimated (though the fan in question has pledged to take no legal action).  It has plagued our nation’s ballparks in recent years.  In fact, I wrote about it in a previous iteration of this blog in a post called “Take Me Out to the Courthouse,” which is reprinted in full, below.

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September 8, 2009, began like any other day at Kaufman Stadium, home of the Kansas City Royals.  The Royals occupied their customary station in the cellar of the American League Central Division, and, to their misfortune, the division-leading Detroit Tigers were coming to town for a three-game series.  On that day, John Coomer, a longtime Royals fan, took his seat six rows up from the third-base dugout to take in the game, not knowing that a date with the fickle frankfurter of fate awaited him.

The Royals were trailing when, during a break in the game, the Royals’ mascot known as “Slugerrr”–an employee in a lion costume–climbed atop the third-base dugout for the park’s customary “hotdog toss,” and proceeded to launch foil-wrapped hotdogs into the crowd, first from an air cannon and later by hand.  It was during a moment of showboating and grandstanding by Sluggerrr that Coomer came face-to-dog with kismet’s kielbasa.  According to a petition filed by Coomer in Jackson County, Missouri, Circuit Court, things went from bad to wurst for Coomer when an errant wiener–launched by Slugerrr in a behind-the-back throw with a little extra mustard–struck him in his left eye, causing a detached retina and subsequent cataracts.  The incident left Coomer red-hot and prompted his lawsuit.

Recently, the Royals organization moved for summary judgment–generally arguing that the lawsuit was so much sauerkraut and that Coomer was acting like a spoiled brat.  The substance of the Royals’ motion was that Coomer–by attending a baseball game–voluntarily assumed the risks attendent to the event and that being struck by a flying footlong was just part of the game.  To be sure, the Royals’ position has considerable support, including in Texas, where courts have held that the possibility of being hit by a foul ball was merely one of the risks undertaken by any spectator at a sporting event.  In Texas, provided that a baseball club provides screened seats where a fan can observe the game without risk of being hit (I believe they are known as the “Owner’s Box”), the team is blameless for any damage that results.  Texas courts have yet to apply the same principles to flying meat products, but–the proof being in the pudding–it seems likely they would.

Nevertheless, the Royals’ motion received a chili reception from the Hon. Brent Powell, Circuit Judge.  Noting that primary implied assumption of the risk does not relieve a defendant of liability for its own negligence, Judge Powell observed that Coomer’s suit alleged that it was not the fact that a hotdog was tossed but the way it was tossed that formed the basis of Coomer’s action.  Moreover, Coomer took the Royals to task for “failing to adequately train and supervise Sluggerrr on the proper method to throw a hotdog into the stands.”  The distinction is one that a jury seems unlikely to relish, and jurors may find themselves struggling to ketchup to the Court’s and Coomer’s logic.  Still, Judge Powell denied the Royals’s motion, and the case can proceed to trial.

Perhaps one of the more annoying aspects of the entire event for Coomer is that he almost certainly missed the Royals’ late-inning heroics when the team scored three times in the final two innings to win the game, 7-5.  Notwithstanding, while there is still no joy in Mudville, the mighty Coomer has yet to strike out.

Follow-Up (because I’m nothing if not thorough, when it comes to processed meat-related injury):

The jury held against Coomer, but, ultimately, the Missouri Supreme Court, sitting en banc (seriously, SITTING EN BANC!) decided that the jury was improperly instructed that getting hit in the face by Slugerrr’s hot dog was pretty much just part of watching the Royals play.  (Presumably, just having to watch the Royals play is bad enough.)  It held that (1) whether Sluggerrr injured Coomer by hitting him with a hotdog, and (2) whether Sluggerrr was negligent in doing so were both fact questions, requiring jury decision, and that just plain sitting in the stands doesn’t subject one to anything worse than watching Danny Duffy.  (And, by the way, the Royals are still in last place.)